FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 26305-13 HONORABLE DAVID ALEXANDER RITCHIE,
Constance Hanes Louisiana Appellate Project, Counsel for
Defendant-Appellant: Michael Ja'rel Tutson.
Foster DeRosier, Fourteenth Judicial District Court District
Attorney Elizabeth Brooks Hollins Ross M. Murray Cynthia
Killingsworth Assistant District Attorneys, Counsel for
Appellee: State of Louisiana.
composed of Elizabeth A. Pickett, D. Kent Savoie, and
Jonathan W. Perry, Judges.
ELIZABETH A. PICKETT, JUDGE.
August 29, 2014, Damion Jackson was outside a home peering
into a window. That window was in the room where the
defendant's mother, the mother's female friend, and
the defendant's minor sister slept. When the defendant,
Michael Ja'Rel Tutson, saw Jackson looking into the
house, the defendant ran after him. Jackson stopped, turned
toward the defendant, and took a step toward him. The
defendant then shot Jackson. When the weapon jammed, the
defendant cleared the jam and shot Jackson again. Jackson was
shot three times, once in the neck, back, and left leg.
defendant told police he had never seen Jackson before and
Jackson had nothing in his hands. Police testified Jackson
worked at a fast food restaurant regularly visited by the
defendant's sister and mother, and Jackson frequently
walked the defendant's sister to the bus stop. However,
the defendant's sister denied knowing Jackson.
defendant was charged by indictment filed on November 21,
2013, with second degree murder, a violation of La.R.S.
14:30.1. Trial by jury commenced on November 27,
2017, and the jury returned a verdict of guilty of the
responsive verdict of manslaughter, a violation of La.R.S.
14:31, on December 4, 2017. The defendant was sentenced on
February 23, 2018, to serve forty years at hard labor. A
Motion for Appeal and Designation of Record was filed on
March 6, 2018, and was granted. The defendant is now before
this court asserting two assignments of error: 1)counsel was
ineffective for failing to file a motion to reconsider his
sentence; and 2)his sentence is excessive.
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed by this court for errors patent on the face of the
record. After reviewing the record, we find there are no
Trial counsel rendered ineffective assistance at sentencing
in failing to file a motion to reconsider after the trial
court imposed the maximum forty-year sentence on Michael
Tutson for manslaughter.
Tutson's forty-year sentence for manslaughter is
excessive under the circumstances.
first assignment of error, the defendant contends trial
counsel rendered ineffective assistance in failing to file a
motion to reconsider after the trial court imposed the
maximum forty-year sentence for manslaughter. In his second
assignment of error, the defendant contends his forty-year
sentence is excessive. We will address these assignments of
Louisiana Code of Criminal Procedure Article 881.1 provides:
A. (1) In felony cases, within thirty days following the
imposition of sentence or within such longer period as the
trial court may set at sentence, the state or the defendant
may make or file a motion to reconsider sentence.
B. The motion shall be oral at the time of sentence or shall
be in writing thereafter and shall set forth the specific
grounds on which the motion is based.
E. Failure to make or file a motion to reconsider sentence or
to include a specific ground upon which a motion to
reconsider sentence may be based, including a claim of
excessiveness, shall preclude the state or the defendant from
raising an objection to the sentence or from urging any
ground not raised in the motion on appeal or review.
defense counsel nor the defendant objected to the sentence
imposed at the sentencing hearing or filed a motion to
reconsider the defendant's sentence. Thus, under some
jurisprudence, the defendant is precluded from appealing his
sentence. See State v. Bamburg, 00-675 (La.App. 3
Cir. 11/2/00), 772 So.2d 356; State v. Williams,
01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ
denied, 02-578 (La. 1/31/03), 836 So.2d 59; State v.
Duplantis, 13-424 (La.App. 3 Cir. 11/27/13), 127 So.3d
143, writ denied, 14-283 (La. 9/19/14), 148 So.3d
949. This court has, however, previously reviewed claims of
excessiveness where no motion to reconsider sentence was
filed or objection made, performing a bare excessiveness
review. State v. Jackson, 14-9 (La.App. 3 Cir.
6/18/14), 146 So.3d 631, writ denied, 14-1544 (La.
2/27/15), 159 So.3d 1066; State v. Soriano, 15-1006
(La.App. 3 Cir. 6/1/16), 192 So.3d 899, writ ...